2018 (4) TMI 899 - AT - Central Excise

Validity of SCN - Provisional assessment - Held that - there is no dispute about the fact that the goods were cleared under Provisional assessment procedure under Rule 9B of Central Excise Rules. The Appellants had followed the procedure by executing Bond alongwith Bank Guarantee. Even the assessment was finalized and the differential duty was paid by the Appellant. The assessment was finalized vide Assessment order dt. 21.04.1996 - in between, the SCN dt. 17.01.996 was issued to Appellant. Clearly the issue of show cause notice during the provisional assessment was bad in law and hence not sustainable - appeal allowed - decided in favor of appellant.

Issues:
1. Validity of demands made by the adjudicating authority.
2. Legality of show cause notice issued during provisional assessment.
3. Permissibility of discounts claimed by the Appellant.
4. Applicability of relevant legal precedents.

Analysis:

Issue 1: Validity of demands made by the adjudicating authority
The Appellants were engaged in manufacturing insulated wares and vacuum flasks. They claimed deductions on account of discounts from depot sale prices. The department alleged that the discounts were not passed on uniformly and were given arbitrarily without following a discount policy. The demands were confirmed by the adjudicating authority, leading to the appeal before the Tribunal. The Appellant argued that the demands were unsustainable as they were beyond the scope of the show cause notice. The Tribunal found that the discount issue was not handled correctly, and the demands were set aside.

Issue 2: Legality of show cause notice issued during provisional assessment
The Appellant contended that the show cause notice issued during the provisional assessment was illegal. They argued that no duty could be demanded until the finalization of assessment, as the clearances were provisional and appropriate bonds were executed. The Tribunal agreed with the Appellant, citing legal precedents that show cause notices during provisional assessments are not permissible. The show cause notice issued during the provisional assessment was deemed bad in law and unsustainable.

Issue 3: Permissibility of discounts claimed by the Appellant
The Appellant claimed that the discounts given were as per a predetermined discount structure at the time of sale, and hence should not be disallowed. They argued that the discounts were region-wise to maintain a common price across the country due to varying taxes and other factors. The Appellant emphasized that the discount structures were permissible deductions under the Central Excise Act. The Tribunal noted that the adjudicating authority had allowed a deduction on an average basis lower than the Appellant's claim, which was contradictory to the grounds of the show cause notice. The Tribunal found the Appellant's discount practices reasonable and permissible.

Issue 4: Applicability of relevant legal precedents
The Tribunal relied on legal precedents, including judgments from the Supreme Court and Tribunal, to support its decision. Citing cases like CCE, Mumbai Vs. I.T.C Limited and Godfrey Phillips India Ltd, the Tribunal concluded that the show cause notice issued to the Appellant during the provisional assessment was unlawful. Following the precedent judgments, the Tribunal set aside the impugned order and allowed the appeal with consequential reliefs to the Appellant.

In conclusion, the Tribunal found in favor of the Appellant, setting aside the demands and the impugned order due to the invalidity of the show cause notice issued during the provisional assessment and the permissible nature of the discounts claimed by the Appellant. The decision was based on legal precedents and established principles governing such matters.

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